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BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

WILLIAM LEE THOMPSON v. WALTER A. MCNEIL,

SECRETARY, FLORIDA DEPARTMENT OF

CORRECTIONS

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 

No. 08–7369. Decided March 9, 2009 

JUSTICE BREYER, dissenting from denial of certiorari. 

This petition asks us to determine whether the Eighth

Amendment’s prohibition on “cruel and unusual punishments” precludes the execution of a prisoner who has 

spent over 30 years on death row. JUSTICE STEVENS and I 

have previously written that this is a question that merits

the Court’s attention, see, e.g., Lackey v. Texas, 514 U. S. 

1045 (1995) (STEVENS, J., respecting denial of certiorari); 

Foster v. Florida, 537 U. S. 990 (1999) (BREYER, J., dissenting from denial of certiorari); Knight v. Florida, 528 

U. S. 990, 993 (1999) (same), and the delay here is even

longer than the delay in those prior cases. Here, petitioner has been on death row for 32 years, well over half 

his life. For the reasons we have set forth in the past and

for many of those added in JUSTICE STEVENS’ separate 

statement, I would grant this petition. 

JUSTICE THOMAS suggests that petitioner cannot now 

challenge the constitutionality of the delay because much

of that delay is his own fault—he caused it by choosing to

challenge the sentence that the people of Florida deemed

appropriate. See ante, at 1 (opinion concurring in denial of 

certiorari). I do not believe that petitioner’s decision to 

exercise his right to seek appellate review of his death 

sentence automatically waives a claim that the Eighth 

Amendment proscribes a delay of more than 30 years. See 

Gregg v. Georgia, 428 U. S. 153, 198 (1976) (joint opinion 

of Stewart, Powell, and STEVENS, JJ.) (automatic appeal of 
2 THOMPSON v. MCNEIL 

BREYER, J., dissenting 

all death sentences is “an important additional safeguard 

against arbitrariness and caprice”). But in any event the

delay here resulted in significant part from constitutionally defective death penalty procedures for which petitioner was not responsible. See Knight, supra, at 993. 

In particular, the delay was partly caused by the sentencing judge’s failure to allow the presentation and jury

consideration of nonstatutory mitigating circumstances, 

an approach which we have unanimously held constitutionally forbidden, see Hitchcock v. Dugger, 481 U. S. 393, 

398–399 (1987). As a result of this error, the Florida 

Supreme Court remanded for resentencing. See Thompson v. Dugger, 515 So. 2d 173 (1987).

At petitioner’s resentencing, he presented substantial

mitigating evidence, not previously presented, that suggested that he may be significantly less culpable than his

codefendant, who did not receive the death penalty. Petitioner, for example, introduced an affidavit of Barbara

Garritz, who witnessed the crime for which petitioner was 

sentenced to death. She described petitioner’s codefendant Rocky Surace as “an evil man” and “the devil, 

himself” and explained that he “manipulate[d] people . . . 

[into] follow[ing] his orders.” Tr. 2473 (May 31, 1989). By

contrast, she described petitioner as “a big, easy-going 

child who would do just about anything to please” and who

“never seemed to have an idea of his own.” Id., at 2474; 

see also ibid. (“He would do just about anything he was 

told”). She described the relationship between petitioner

and Rocky as follows: “Bill was completely under Rocky’s

spell. He hung on every word Rocky said and would do 

and say everything Rocky did and said. He was like 

Rocky’s dog. Rocky would give an order and Bill would do 

it, no questions asked.” Id., at 2475. With respect to the

night in question, she explained that, “Everything Bill did, 

he did at Rocky’s direction, just like he always did when I

was around the two. I saw what happened and I know 
Cite as: 556 U. S. ____ (2009) 3 

BREYER, J., dissenting 

that Rocky started and finished the whole thing.” Ibid. 

Garritz’s testimony was consistent with the picture of

petitioner painted by other witnesses. For example, one of

petitioner’s teachers testified that while in elementary

school petitioner consistently scored in the mid-70’s on IQ 

tests; those scores qualified him for classes for the educable mentally retarded. Id., at 2178 (May 30, 1989). His 

teachers also described him as “slow,” a “follower” who 

was “always . . . eager to please.” Id., at 2185, 2186, 2185; 

see also id., at 2191–2192. A psychologist and a psychiatrist who examined him both described him as showing 

signs of brain damage, id., at 2510, 2513, 2516, 2523 (June

1, 1989); see also id., at 2570–2571, 2577, and a psychiatrist testified that “the kind of disorder [petitioner] has, 

he’s easily led and felt very threatened by the codefendant,” id., at 2564; see also id., at 2602 (“There is no

doubt in the world that this man basically appeared to be 

a rather—rather dependent person who tends to follow the 

leader. He is not a leader himself. So, whatever Mr. 

Surace says, he probably goes along with it”). After hearing this evidence, the jury recommended a death sentence

by a vote of 7 to 5.

I refer to the evidence only to point out that it is fair, not

unfair, to take account of the delay the State caused when 

it initially refused to allow Thompson to present it at the 

punishment phase of his trial. I would add that it is the 

punishment, not the gruesome nature of the crime, which 

is at issue. Reasonable jurors might, and did, disagree 

about the appropriateness of executing Thompson for his 

role in that crime. The question here, however, is whether

the Constitution permits that execution after a delay of 32

years—a delay for which the State was in significant part 

responsible.

I believe we should grant the writ to consider that question.